Monday, April 7, 2014
The Pew Research Center Internet Project has issued a new report on the use of technology among older adults. (some readers might find irony in the fact that I'm writing this blog post while flying to Huntsville ,Alabama and connected to the internet at 30,000 feet). The April 3, 2014 Pew report, Older Adults and Technology Use shows that this group of digital immigrants has been slow to adopt the use of technology, but there is growth. The report's major findings show that:
America’s seniors have historically been late adopters to the world of technology compared to their younger compatriots, but their movement into digital life continues to deepen, according to newly released data from the Pew Research Center. In this report, we take advantage of a particularly large survey to conduct a unique exploration not only of technology use between Americans ages 65 or older and the rest of the population, but within the senior population as well.
Two different groups of older Americans emerge. The first group (which leans toward younger, more highly educated, or more affluent seniors) has relatively substantial technology assets, and also has a positive view toward the benefits of online platforms. The other (which tends to be older and less affluent, often with significant challenges with health or disability) is largely disconnected from the world of digital tools and services, both physically and psychologically.
As the internet plays an increasingly central role in connecting Americans of all ages to news and information, government services, health resources, and opportunities for social support, these divisions are noteworthy—particularly for the many organizations and individual caregivers who serve the older adult population.
Here are some of the key points discussed in the report: "[s]ix in ten seniors now go online, and just under half are broadband adopters" (that is, "more than half of older adults (defined as those ages 65 or older) were internet users." (emphasis in original). This reflects a 6% uptick in a year, according to the report. More now have a cell phone, up from 69% in 2012 to 77%. However, the report notes that older adults still are slowly to adopt tech, with "41% ...not us[ing] the internet at all" slightly less than a quarter not using cell phones and slightly over half without broadband at home. The report found that "[y]ounger, higher-income, and more highly educated seniors use the internet and broadband at rates approaching—or even exceeding—the general population; internet use and broadband adoption each drop off dramatically around age 75."
The report reviewed the hurdles to adoption of new tech by older adults, including
- Physical challenges;
- Skepticism regarding how technology benefits them; and
- Difficulties learning to use new technologies--what I call the "teaching old dogs new tricks" scenario.
Yet once older adults move to the digital world, "digital technology often becomes an integral part of their daily lives."
And how many devices do you have? Older adult ownership is also different, according to the report
- fewer own a smartphone,
- tablets and e-readers are just as sought after as smartphones (amongst the rest of the population, smartphones are more prevalent), and
- a little over 25% of the respondents use social networking.
The report has some very interesting data in it and I think it's well worth reading--whether on your computer or e-reader!
Causation Proof Needed for Breach of Contract Claims Against "Responsible Parties" in Nursing Home Cases
We have another interesting appellate decision from Connecticut on the question of personal liability of an individual who signed an agreement as a "responsible party" when admitting his parent to a nursing home. The opinion is in Meadowbrook Center, Inc. v. Buchman, issued by the Connecticut Court of Appeals with a decision date of April 8, 2014.
The majority of the three judge panel concludes that the son who signed the agreement cannot be held liable, based on the evidence -- or rather lack of evidence -- in the record. Although the evidence establishes the son failed to provide all information requested by the state Medicaid department following his mother's application for Medicaid, and therefore breached duties he assumed as a "responsible party" under Section IV of the nursing home agreement, the majority concludes he cannot be held liable because there "is no evidence in the record...indicating that, had the defendant [son] complied with his obligations under the agreement, [the nursing home] would have received any Medicaid payments."
In other words, the nursing home proved breach, but not causation of damages, even though "the parties stipulated...that if the department granted Medicaid benefits to the defendant's mother, the department would have paid the facility $47,561.18." The ruling focuses on that "if," noting:
"The testimonial evidence submitted to the court demonstrated, on the one hand, that submitting the proper information to the department merely triggered a review of the resident's eligibility and, on the other hand, the submission of such information was not a guarantee of approval to receive such benefits.... [A]n eligibility services supervisor at the department...testified that the department could not determine whether an applicant qualified for Medicaid absent a review of the applicant's financial information, which was not furnished to the department in the present case. As the defendant notes in his appellate brief, the plaintiff did not ask Leveque 'if, based upon the defendant's testimony regarding the assets maintained by [his mother], he had an opinion regarding whether ... [she] would have qualified for [such] benefits.' In addition, the record before us does not indicate that the plaintiff was prevented from presenting the proper financial documentation, expert testimony, or other evidence that would have otherwise established the resident's likelihood of approval, nor has the plaintiff in this appeal directed our attention to any such evidence."
There is a complicated history to third-party liability issues in nursing home contracts, especially in Connecticut. As readers of our Blog may recall, last year the Connecticut Supreme Court declined to hold a signing family member liable for costs of the parent's care, where that individual did not have a Power of Attorney or other authority to apply for Medicaid. See "Nursing Home Contracts Revisited: The Nutmeg State Adds Spice," commenting on Aaron Manor, Inc. v. Irving, 57 A.3d 342 (Conn. 2013). Further, as we note in that post, Connecticut made significant changes to its Medicaid laws effective in October 2013, as a result of a series of nursing home cases involving third-parties. In certain circumstances, Connecticut now seeks to impose statutory liability on individuals who are either transferors or transferees, connected to the resident's ineligibility for Medicaid because of disqualifying transfers.
The Meadowbrook decision is also well worth reading for anyone interested in the related but separate concepts of contract law and promissory estoppel.
Further, in a separate concurring opinion, a third judge concludes that the nursing home agreement should not be construed as imposing liability unless the "responsible party" has been shown to have misappropriated the resident's resources, because without that personal fault, the responsible party agreement becomes a "guaranty," prohibited by federal Medicaid law. The majority, however, "strongly" rejects that analysis. We'll keep our eyes open to see if the Meadowbrook case goes to the Connecticut Supreme Court.
When I first began analyzing "responsible party" liability in nursing home contracts, I became convinced the contracts drafted by many facilities created a minefield of problems. In some instances, the providers seem to intentionally blur the lines of responsibility for third-parties. On the one hand, facilities "need" agents to sign for new residents who are often lacking capacity to contract. So the admissions office points to the "no personal liability" language in the agreement signed by the third-party. On the other hand, if something does go wrong with the Medicaid application, that same facility will often be quick to point out that it is the third-party signer's obligation to fix the problem, or face potential personal liability.
The nursing homes, of course, whether for profit 0r nonprofit, are not in the business of providing free care.
The last ten years of litigation have only increased the importance for individuals to understand the significance of nursing home agreements. Individuals may want legal advice from specialists in state Medicaid law before signing the agreement; further they may need to seek legal help again if there is any hiccup in the Medicaid application process. After the Meadowbrook case, I think it is safe to say care facilities will be better prepared to prove causation of damages.
Sunday, April 6, 2014
I was in Washington D.C. over the weekend and stopped by one of my favorite theaters, the Arena Stage. I was hoping to get a ticket for the much talked about play Camp David, but I'm happy to report it was sold out and instead I saw a play I knew nothing about.
Ann Randolph's play, Loveland, is "outrageous." But before you make assumptions, let me suggest the multiple ways the word applies. Loveland includes outrageously funny moments, justifiably outraged anger, and rage-worn poignancy. You are laughing one minute, and wiping away a tear in the next. And Randolph, the playwright and actress, manages to pull all of this off while seated on the north side of an airplane flying east, a spot chosen so that she can have the best views of our National Parks ... and remain close to her mother's ashes.
It is a one woman play -- but not a one character play. The articulation and pacing of the 75 minute show are brilliant. I guarantee you will join in (even if you feel very guilty for doing so) when she teaches you the latest tune for sing-alongs at your parent's nursing home.
Hurry to see it, especially if you want to catch the play in D.C., as Loveland is booked for just one more week at the Arena Stage's newest and most intimate venue, the Kogod Cradle.
Saturday, April 5, 2014
Ralph Schwanbeck feared that his 87-year-old wife, Dorothy, might balk at donning headphones for the first time in her life, but her broad smile proved that the iPod was playing her songs.
Dorothy, who has Parkinson's disease, gently tapped her toes a few times while listening to some of her favorite tunes recently at Hillview Health Care Center in La Crosse. Hillview is one of 100 nursing homes statewide certified to participate in a Wisconsin Department of Health Services program to help residents with Alzheimer's disease and related dementias. Titled the Wisconsin Music and Memory Initiative, the program employs iPods with personalized playlists to rekindle residents' memories with familiar music, as well as lift their spirits and improve their interaction with family members, other residents and staffers. The program provides each nursing home with 15 iPods, but Hillview sees such promise that it also bought one and invites people to donate new or used iPods. Even though Hillview began the program just recently, results for Dorothy already were beginning to show.
Friday, April 4, 2014
A record number of elderly people are completing living wills to guide end-of-life medical treatments – up from 47 percent in 2000 to 72 percent in 2010 – according to new research from the University of Michigan and the Veterans Affairs Ann Arbor Healthcare System. However, even with nearly double the number of people completing advance directives – which may specify preferences for surrogate decision makers and life-support treatment – there was little difference in hospitalization rates or deaths in the hospital, says the study that appears in the Journal of the American Geriatrics Society.
"Given the aging population, there's been a great push to encourage more people to complete advance directives with the idea that this may increase hospice care and reduce hospitalization for patients during the last six months of life," says lead author and palliative care specialist Maria Silveira, M.D., M.A., M.P.H, researcher with the VA Ann Arbor Healthcare System and assistant professor in the Department of Internal Medicine at the U-M Medical School.
"We found that while there's an upward trend in creating these documents, it didn't have much bearing at all on hospitalization rates over the decade. Indeed, hospitalization rates increased during the decade, rather than go down. These are really devices that ensure people's preferences get respected, not devices that can control whether a person chooses to be hospitalized before death."
Silveira says the increase in advanced directives indicates that people are less timid about broaching end-of-life planning and talking about death with loved ones.
The Florida Supreme court ruled unanimously in Aldrich v Basile on March 27 that property acquired by a testator after execution of her will was not be controlled by the will, because although she had made bequests, the "E-Z Legal Form" she used did not include a residuary clause to address non-specific bequests. Thus the after-acquired property passed by intestacy laws to family members not mentioned in the will.
The testator has used the "will form" to make specific bequests of several items of valuable property, including her house, vehicle and bank accounts (identified by numbers) to her sister, and provided that if her sister "dies before I do I leave all listed to" her brother. The sister died first, leaving "Putnam County" property to the testator. Two nieces (children of a second brother, also deceased) asserted an interest in the probate action, arguing that "without any general devises and in the absence of a residuary clause," the will "contained no mechanism to dispose of the after-acquired property." They could recover under Florida's intestacy laws.
The court also rejected consideration of a separate hand-written note by the testator as evidence of her "true" intent with regard to the after-acquired property to the named brother, because Florida's law requires "the same formalities" as a will for codicils.
In a separate concurring opinion, Justice Pariente pointed to the pre-printed will form, noting there was no "space to include a residuary clause or pre-printed language that would allow a testator to elect to use such a clause." Justice Pariente described the unfortunate decision by the testator to rely on a form, rather than hire a "knowledgeable lawyer," as an example of the "old adage 'penny-wise and pound-foolish:'"
"I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As the case demonstrates, that decision can ultimately result in the frustration of the testator's intent, in addition to the payment of extensive attorney's fees -- the precise results the testator sought to avoid in the first place."
For another example of a "penny-wise and pound foolish" outcome from use of commercial estate planning "forms," see our October 2013 post on a Pennsylvania case, see "Do-It-Yourself Wills: Penny Wise & Pound Foolish?"
Thanks to Professor Laurel Terry for pointing to an ABA Journal Blog post on the Florida case.
Have your estate planning all done? All your documents signed and in a safe place? What about your final plans---for your funeral, invitations for that event, putting your documents in a place where they can be located? Want to use a website for storage of all this important info?
Tara Siegel Bernard writes about this in her March 28, 2014 NY Times article, Navigating the Logistics of Death Ahead of Time. She notes the growth of businesses that helps clients make their "end-of-life plans", covering what estate planning and end of life documents people need, storage for the important papers, and info about the funeral. Several of these websites deal with all aspects of planning, including storing all those passwords we create for our digital selves. Others only cover a discrete topic. The article also discusses the security of these websites and offers a brief overview of several of the sites.
As well, Ms. Bernard mentions the "old-school" method of planning: putting everything in a folder. She references the "What if..." workbook while she wrote about last year, which allows one to write everything down in one book.
Thursday, April 3, 2014
Materials to Promote Older Americans Month 2014 Available
May is Older Americans Month. This year’s theme focuses on injury prevention: Safe Today. Healthy Tomorrow.
To help participating organizations promote their events, ACL has posted new materials for 2014 here: Older Americans Month.
The toolkit includes facts about preventing falls and injuries, an activity guide, poster templates, logos, and tips for consumers.
Here's an excerpt from a recent Blog posting at the Special Needs Alliance:
This is the first in a series of articles addressing scarce housing for people with disabilities.
The shortage in housing for individuals with disabilities has reached crisis proportions, with some special needs attorneys citing it as their clients’ number one issue.
“Pricing Out in 2012,” a joint study by CCD (Consortium for Citizens with Disabilities) and the Technical Assistance Collaborative (TAC), found that “as many as two million non-elderly people with disabilities reside in homeless shelters, public institutions, nursing homes, unsafe and overcrowded board and care homes, at home with aging parents or segregated group quarters-often due to lack of affordable housing in the community.”
The situation results from a perfect storm of demographic trends, failed promises and budget tradeoffs. Prior to the 1970s, most people with significant disabilities lived in public institutions or at home with family caregivers. The history of institutionalization predates the nation’s founding, with the 1773 establishment of the first Public Hospital for Persons of Insane and Disordered Mind in Williamsburg, Virginia.
Remember the Gray Panthers? Davis Wallis wrote a column for the NY Times on March 14, 2014, As Living Standards Fall for Seniors, SomeSee Signs of ‘Silver Revolution’. As the title notes, the article focuses on costs facing those who are retired and whether the changing climate of government belt-tightening will lead to a "senior rights movement." The story quotes several experts about whether the changing times will result in a wave of silver protests.
That's a frequent paper topic proposal for students in my Elder Law course, and one that usually triggers a conversation about the potential for "ageism." I remind students it will be important to provide evidence in support of their proposals, and not simply recount anecdotes about bad older drivers.
But, in truth, there is plenty of data to identify risks associated with older driving, as suggested by Elder Law Attorney Robert Fleming on his great Blog, citing statistics from the Center for Disease Control about risks for "fatal" accidents over age 75. See "Driving, Aging and Dealing with Family Dynamics."
ElderLawGuy Jeff Marshall takes a very personal look at his own driving future on his Blog, and uses that moment of self reflection to also examine strategies for encouraging older drivers to give up the keys. Read "What to Do When Dad Shouldn't Be Driving."
This is another area of "social policy" where the laws are not uniform on how to intervene when the older driver refuses to stop driving or to make other appropriate adjustments in when and where to drive. Here is a link from the insurance industry's Claims Journal to a recent "State by State Look at Driving Rules for Older Drivers."
And, for a somewhat more theoretical approach to the topic, from University of Miami Law Professor Bruce Winick, the always thoughtful guru of the therapeutic jurisprudence movement, see "Aging, Driving and Public Health: A Therapeutic Jurisprudence Approach." Professor Winick proposes creation of community-based "safe driving centers," as a means of encouraging impaired drivers "voluntarily to cease or restrict their driving by offering inducements and alternative transportation solutions."
And of course, we have Professor Becky Morgan's preferred solution, the Jetsons' car that drives (and parks) itself. Read "New Study on Autonomous Cars."
Wednesday, April 2, 2014
Via the Alzheimer's Association:
We have known that women are the epicenter of Alzheimer's disease - making up the majority of both people living with the disease and caregivers. Not only are 3.2 million women living with Alzheimer's, women are also at the epicenter of caregiving for someone with the disease. The Alzheimer's Association's new 2014 Alzheimer's Disease Facts and Figures report shows women have a 1 in 6 chance of developing Alzheimer's, while men have a 1 in 11 chance. As real a concern as breast cancer is to women's health, women in their 60s are about twice as likely to develop Alzheimer's over the rest of their lives as they are to develop breast cancer.
A new Alzheimer's Association women's initiative has launched in conjunction with the Facts and Figures report. Realizing the impact Alzheimer's has on women - and the impact women can have when they work together - we ask women to share why their brain matters and how they can use it to end Alzheimer's at alz.org/mybrain.
We know that not all states have chosen to expand Medicaid under the Affordable Care Act. According to a March 28, 2014 The Commonwealth Fund Blog, The Affordable Care Act's Medicaid Expansion: Alternative State Approaches, only 26 states + DC have decided to expand Medicaid. The authors, Tracy Garber & Sara Collins, look at what steps some of those non-expansion states are taking to provide health insurance to poor residents. The post discusses the 1115 waivers obtained by Arkansas, Iowa and Michigan as well as proposals by Pennsylvania, New Hampshire & Utah.
The Commonwealth Fund also offers an interactive map that shows which states are expanding Medicaid and for those that are not, the implications (number of folks without coverage and loss of federal dollars). The Commonwealth Fund also offers a Health Reform Resource Center that offers a timeline for implementation of the ACA, summary of the provisions, articles and more.
University of Oklahoma Professor of Law Jonathan Barry Foreman writes on "Supporting the Oldest Old: The Role of Social Insurance, Pensions, and Financial Products," for the Elder Law Journal in 2014.
He points to "longevity risk," defined as the risk of outliving one's retirement savings, as "probably the greatest risk facing current and future retirees" in the U.S. As several recent studies demonstrate, such as those cited on the Elder Law Prof Blog here, here and here, many people are not adequately prepared in terms of finances for retirement.
In responding to this risk, Professor Foreman writes thoughtfully, proposing systemic alternatives, including expansion of Social Security and SSI for "the oldest old." Professor Foreman suggests 90 years of age as the starting point for that category. In addition he proposes greater incentives for public and private employers to promote annuities and other "lifetime income products" as components of employment-based retirement packages.
He concludes with a warning based on our national history of frequently failing to make significant changes in advance of a predictable crisis:
"Social insurance programs like Social Security, Supplemental Security Income, and Medicaid will certainly need to be expanded. Workers will also need to be encouraged to work longer and save more for their eventual retirements, and both workers and retirees should be encouraged to annuitize more of their retirement savings.
While these kinds of solutions seem fairly predictable, the answers to two important policy questions have yet to be decided. First, how much will the government require the oldest old to save earlier in their lives? And second, how much will the government redistribute to benefit the oldest old? Unfortunately, if the history of the Social Security system is any indication, both government mandates and redistribution will be modest, and a significant portion of the oldest old will face their final years with inadequate economic resources."
Reading Professor Foreman's tightly focused paper suggests to me that there is, perhaps, a certain irony to all of this. The irony is that by not embracing systemic change, Americans are engaging in a form of financial roulette, betting we won't live long enough to care about the outcome of our gamble.
Now this may be a surprise to some of us, but almost 10,000 people a day are turning 65 and will do so for about the next 16 years. Who are those people, you ask? Well, I reply, the Baby Boomers, of course! And as you may recall from a post last week, the Boomers just keep working. What does this mean to the work force? For many it means that it is important for us to understand that many individuals hold a negative bias against older workers, what I'm referring to here in this post as "age bias".
Unlike those from previous generations, who in the popular imagination happily shuffled off to leisure, most of the new retirees say they want to stay in the paid work force... So far, however, staying on the job — in any position — is turning out to be harder than the baby boomers anticipated (and, in some cases, less desirable). Fewer than a fifth of Americans over the age of 65 remain in the paid work force. If a man or woman over 55 is unemployed, it takes that person several months longer than someone younger to find a job. Such people are also disproportionately represented among the long-term jobless.
The article notes that age bias studies are being generated, but identifying the problem and solving it, are two different issues. It appears that age bias can have an across the board negative impact on the workplace, with "[r]esearch show[ing] that bias against senior workers decreases the engagement of everyone in the workplace." Although we might teach our students about ADEA claims filed with the EEOC, the article notes that "[e]ven though age discrimination claims at the Equal Employment Opportunity Commission are up sharply in recent years, older Americans have little recourse if they believe they are victims of illegal bias, since it is hard to prove."
Tuesday, April 1, 2014
Free on-site or webinar trainings are available for elder advocates this spring. The National Elder Rights Training Project provides training on a wide range of law and aging topics to legal services providers and elder advocates nationwide. Priority for on-site training is offered to states involved in the Model Approaches to Statewide Legal Assistance Systems demonstration grants. However other organizations may also apply. Preference will be given to organizations that can commit to marketing and outreach for the training event to attract the targeted audience. The training is free and the National Consumer Law Center or another partner from the National Legal Resource Center will conduct the training. While the trainings are offered on a wide range of topics, selection of the organization is in part based on availability of trainers. Currently expert trainers are available on a wide range of consumer law topics.
The training application is available at http://www.nlrc.aoa.gov/NLRC/Training_Request/Index.aspx. You may also contact Odette Williamson at firstname.lastname@example.org with questions.
AARP has released the "Fraud Watch Network" (FWN) that allows you to stay current on the latest scams, access resources and check the latest for a specific state. The state specific information includes alerts from law enforcement as well as scams reported by people in that state. You can also sign up for scam alerts from the FWN here.
In addition, AARP has a webpage devoted to scams and frauds. You can take a quiz to see if you are savvy about avoiding scams. There is also useful information about software to keep your portable electronics secure. Browse the two sites to learn more.
Washington Post writer Michelle Singletary hosts a column called The Color of Money. Recently she wrote about the importance of talking with your adult children about your preferences and finances "long before a health crisis forces the issue" that may put them in the position of caregivers. At the same time, she acknowledges this conversation isn't easy to start.
For assistance she suggests the book "The Other Talk: A Guide to Talking With Your Adult Children About the Rest of You Life," by author Tim Prosch. To further the conversation, Singletary and Prosch are hosting an on-line dicussion about "The Other Talk" on Thursday, April 24 at noon, Eastern time. Here's the link to the Washington Post forum for the program.
Monday, March 31, 2014
A fast-moving phone scam called the largest of its kind is targeting taxpayers across the country. Victims have reported threats of license suspension, arrest and deportation. What makes this timely scam so tricky? The scammers impersonate Internal Revenue Service (IRS) agents and demand payment for taxes owed, and often:
- know the last four digits of the victim’s Social Security number;
- make caller ID appear as if the IRS is calling;
- send follow-up bogus IRS emails to support their scam; and
- call a second time claiming to be the police or Department of Motor Vehicles, and caller ID again supports their claim.
The IRS usually contacts people by mail not by phone about unpaid taxes.
The IRS won’t ask for payment using a pre-paid debit card or wire transfer, nor will they involve law enforcement or immigration agencies.
WHAT TO DO:
If you or a family member receives one of these calls, your best bet is to hang up. But if you do get into a conversation, do not give anyone money or credit card information over the phone and don’t trust callers who use threats or insults to bully you.
Report the incident to the Treasury Inspector General for Tax Administration at 1-800-366-4484.
File a complaint with the Federal Trade Commission at www.ftc.gov. Add "IRS Telephone Scam" to the comments in your complaint.
If you owe or think you owe federal taxes, call the IRS directly at 1-800-829-1040 to verify information.
For more information, visit www.irs.gov.
Please help spread the word about this tax season scam by sharing this email with your friends and family.
If you or someone you know has been a victim of identity theft or fraud, contact the AARP Foundation Fraud Fighter Center at 1-800-646-2283.
The Center's mission:
is to redesign long life ... [and] stud[y] the nature and development of the human life span, looking for innovative ways to use science and technology to solve the problems of people over 50 by improving the well-being of people of all ages... [and] to use increased life expectancy to bring about profound advances in the quality of life from early childhood to old age. To inspire change of this scale, the Center works with academic experts, business leaders and policy makers to target important challenges and opportunities for aging societies. By fostering dialogue and collaboration among these typically disconnected worlds, the Center aims to develop workable solutions to urgent issues confronting the world as the population ages.
The challenge is:
a new competition aimed at encouraging students to design products and services to improve the lives of older adults. The challenge topic is chosen in collaboration with aging service providers and investors, who identify the most pressing needs. Finalists will be given the opportunity to present their designs and discuss possible further collaborations with interested industry partners.
The 2014 competition is looking for new solutions to help people with cognitive impairments stay independent for as long can be achieved. There are seven finalists and registration and tickets are available here